Newsroom Law Blog : Media & Communications Lawyer & Attorney : Brooks Pierce Law Firm : Media Law, Libel Defense, FCC

On July 27, 2010, N.C. Superior Court Judge Calvin E. Murphy ruled from the bench that North Carolina’s shield law, N.C. Gen. Stat. § 8-53.11, protects a newspaper from the compelled disclosure during judicial proceedings of the identities of anonymous commenters to the newspaper’s website. Judge Murphy signed the written order in the case on August 16, and it is available here. To our knowledge, this is the first case in which a North Carolina court has ruled that the state's shield law applies to the identities of anonymous website commenters, although other states have been grappling with the issue with respect to their own state shield laws.

The case stems from the criminal proceedings in Gaston County, N.C., against Michael Mead, who has been charged with murder. Mead’s attorney issued a subpoena to the publisher of the Gaston Gazette, at first requesting identifying information related to a particular website poster (“justicen2010”), but then later also requesting a copy of the Gaston Gazette’s contract with the provider of its website comment forum. (More information on the case is available from the Gazette’s website).

The Gazette challenged the subpoena and raised the state shield law as a protection against compelled disclosure. Judge Murphy agreed with the Gazette’s position, holding that the information sought by the defendant—both the website commenters’ identities and the business contract with the comment forum provider—were confidential information related to the newspaper’s and publisher’s newsgathering and news publishing activities and were obtained while the publisher was acting as a “journalist,” as defined in N.C. Gen. Stat. § 8-53.11(a)(1). (Note: The information at issue in this case was confidential, but North Carolina’s shield law protects both confidential and non-confidential information.) Thus, the judge held that the shield law applied to the facts at hand.

Further applying the statute, Judge Murphy held that the defendant failed to overcome the qualified privilege set forth in N.C. Gen. Stat. § 8-53.11 by demonstrating clearly and specifically that the information and documents sought (1) were relevant and material to the proper administration of the legal proceeding at issue, (2) could not be obtained from alternative sources, and (3) were essential to the maintenance of a claim or defense. In the absence of this showing by the defendant, Judge Murphy quashed the subpoena.

With this ruling, the North Carolina Superior Court now joins other state courts that have held their respective state shield laws protect anonymous website commentary from compelled disclosure in judicial proceedings.

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In the early morning hours of July 10, the North Carolina General Assembly closed the 2009 session by passing a bill that adopts two important changes to North Carolina's Public Records Act.  Both represent positive developments for government transparency in North Carolina.  These changes begin with Section 18.(a) of House Bill 961.

The first set of changes expands an exception to the "personnel file" exception to the Public Records Act.  The "personnel file" exception shields from public view certain documents relating to public employees in North Carolina.  By  expanding the "exception to the exception," the bill makes more information about public employees available. 

In particular, the prior version of the "personnel file" exception provided that among the information that remained a matter of public record notwithstanding the exception was each public employee's "date of most recent promotion, demotion, transfer, suspension, separation, or other change in position classification."  Certain public bodies maintained that this provision required them to disclose only a date to the public, without indicating what change occurred on that date.

Although that argument has twice been rejected by Superior Court judges in North Carolina, House Bill 961 eliminates this position once and for all.  The new language requires the following to be a matter of public record:

Date and type of each promotion, demotion, transfer, suspension, separation, or other change in position classification with that department, agency, institution, commission, or bureau.

The bill also adds two new provisions, which expand the range of information available about public employees:

Date and general description of the reasons for each promotion with that department, agency, institution, commission, or bureau.

Date and type of each dismissal, suspension, or demotion for disciplinary reasons taken by the department, agency, institution, commission, or bureau.  If the disciplinary action was a dismissal, a copy of the written notice of the final decision of the head of the department setting forth the specific acts or omissions that are the basis of the dismissal.

Although North Carolina still allows for substantially more secrecy concerning pubilc employees than a number of other states, these changes are a step in the right direction.

House Bill 961 also makes positive changes to the fee recovery provision of the Public Records Act.  Whereas the old version of the bill permitted judges to decline to award fees to a prevailing public records plaintiff if they found the agency acted "with substantial justification in denying access to the public records or [found that there were] circumstances that would make the award of attorneys' fees unjust."

The ratified language narrows the circumstances in which a prevailing plaintiff would not recover its fees.  In addition to putting in place a mechanism by which public records disputes could mediated prior to litigation, House Bill 961 amends G.S. 132-9 to read:

In any action brought pursuant to this section in which a party successfully compels the disclosure of public records, the court shall allow a party seeking disclosure of public records who substantially prevails to recover its reasonable attorneys' fees if attributed to those public records. The court may not assess attorneys' fees against the governmental body or governmental unit if the court finds that the governmental body or governmental unit acted in reasonable reliance on any of the following:

(1) A judgment or an order of a court applicable to the governmental unit or governmental body.

(2) The published opinion of an appellate court, an order of the North Carolina Business Court, or a final order of the Trial Division of the General Court of Justice.

(3) A written opinion, decision, or letter of the Attorney General.

By enhancing the ability of a prevailing plaintiff to recover its fees, the bill reduces a substantial deterrent to bringing public records lawsuits -- the costs involved.  The new fee recovery provision also puts a greater incentive in place for government agencies to comply with their public records obligations rather than resort to expensive litigation.  The new provision applies to lawsuits initiated after October 1, 2010.

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New Jersey's highest court has overturned an intermediate appellate decision that had refused to apply the "fair report" privilege to accounts of initial pleadings filed in civil lawsuits.  The Supreme Court's decision, issued in the case of Salzano v. North Jersey Media Group, Inc., represents an important victory for the press and the public.

We previously reported on the decision of the New Jersey Court of Appeals, which took a narrow view of the application of the fair report privilege.  The privilege is critical to reporting on official statements and actions by government actors.  It shields a media organization from liability if an official document, statement, or proceeding is given a fair and accurate account, even if the official source contains some factual error that someone contends is defamatory.  Without the privilege, journalists would expose themselves and their organizations to defamation claims merely by reporting what a criminal indictment or arrest report contained, for example, or by reporting what a judge said on the bench.  That risk of liability would force journalists to go behind their official sources and confirm the accuracy of the facts they provided, which would severely hamper reporting on government activities.

The intermediate appellate decision in the Salzano case was troubling because it refused to extend the fair report privilege to initial filings in civil cases.  This would have had the effect of chilling reporting on civil complaints, since reporters would face some risk of liability from defendants or third parties who claimed allegations contained in the complaint were defamatory.  The threat of such litigation could be used to deter reporting on important civil lawsuits, especially those in which the filing of the complaint itself was newsworthy.

In a sweeping decision, the New Jersey Supreme Court reversed, holding that a fair and accurate account of a civil complaint is indeed covered by the fair report privilege.  According to the Court, "there is a clear trend away from recognizing the initial pleadings exception" to the fair report privilege.

The Court went on to explain the strong rationale for rejecting such an exception as follows:

Indeed, the initial pleadings exception is at odds with the reality that the complaint is open to public view. . . . If the initial pleadings exception is retained, an anomalous result obtains: Public documents to which the citizens of our state have free access cannot be disseminated or reported on without risk of a lawsuit.

Because it is impossible for the citizenry to monitor all of the operations of our system of justice, we rely upon the press for vital information about such matters.  Members of the public simply cannot attend every single court case and cannot oversee every single paper filing, although clearly entitled to do so.  Thus, it is critical for the press to be able to report fairly and accurately on every aspect of the administration of justice, including the complaint and answer, without fear of having to defend a defamation case and without the inhibitory effect of such fear.

That interpretation of the privilege more fully advances the principles informing it than any other view.  Indeed, if a citizen presents himself at the local courthouse, there is no question but that he can see filed pleadings for himself.  They are not sanitized nor are they filtered through a veracity lens.  A full, fair, and accurate report of the contents of the pleadings, that is, what plaintiff claims and how defendant defends, places the citizen in the exact same position as if he were present on the scene.  From that perspective, interposing an artificial barrier between the citizen and a truthful and accurate report of what is actually occurring makes no sense.

. . .

In short, we are convinced that the public policy underpinning of the fair-report privilege -- advancement of the public's interest in the free flow of information about official actions -- would be thwarted by the recognition of the initial pleadings exception.  A full, fair, and accurate report regarding a public document that marks the commencement of a judicial proceeding deserves the protection of the privilege.

The Court then expessly adopted the majority view the fair report privilege is absolute -- once the reporter establishes that the report was fair and accurate, then the privilege attaches and cannot be overcome with a showing of malice.

In sum, the Salzano decision marks an important victory against efforts to limit the scope of the fair report privielge, a critical defense for reporters who report on government activity.

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In a case we first flagged back in October of 2009, the Supreme Court last week handed down its decision in Doe v. Reed, a case involving a First Amendment challenge to Washington state's public records act.  The case presented an interesting collision of interests for the media, but the Court held 8-1 that the First Amendment did not prevent the disclosure, pursuant to the PRA, of the identities of those citizens who signed a petition seeking to place a referendum on the ballot.

When the Court granted cert in January, we described the case as follows:

The dispute in Doe v. Reed involves the question of whether the signed petitions that ultimately allowed Referendum 71 [a ballot initiative seeking to overturn a law that granted legal rights to domestic partners equivalent to those enjoyed by married couples] to appear on the ballot constitute public records that are subject to disclosure under Washington law as public records. Nearly 138,000 names appear on these petitions. The plaintiffs brought suit in federal court, contending that those who had requested the petitions had indicated they would publish the list of names on the Internet. Making the list available under public records laws, according to the plaintiffs, threatened to chill the First Amendment activity of supporters of Referendum 71. The plaintiffs assert that those who petitioned to include Referendum 71 on the November ballot would face harassment from opponents of the ballot measure if their names were made publicly available.

As we wrote back then, upholding the PRA would constitute an important victory for government reporters, for whom public records laws are a core part of their newsgathering activities.  And yet, the opposite ruling might help boost claims of First Amendment support for anonymous speech, which more and more news outlets find themselves asserting these days.

In a welter of concurring opinions (and one dissent), the Court explored all angles of the case, finally holding that the petitioners' facial challenge to the PRA failed because the state had a sufficient interest in enacting laws designed to preserve electoral integrity.  The PRA, the Court held, was not a prohibition on speech, but rather was a disclosure requirement in the voting context, meaning that it was reviewed under a less exacting standard than "strict scrutiny."  Chief Justice Roberts, for the Court, wrote that giving the public access to petition records provided a crucial check on the government's efforts to count and validate those signatures, and that such a check was sufficiently related to the state's interest in electoral integrity.

Justice Alito concurred insofar as the case was a facial challenge, but made it clear that he would rule differently on an as-applied challenge if the petitioners can show a "reasonable probability that the compelled disclosure [of personal information] will subject them to threats, harassment, or reprisals" from the government or the public.

Justice Scalia, also concurring, said that the petitioners had no First Amendment right to non-disclosure.  Justice Scalia pointed out that those who signed the petition had not done so anonymously -- indeed had they done so their "signatures" would not have counted.  Because they were only now seeking to have that action be anonymous, Scalia called this " a sort of partial anonymity" not worthy of First Amendment protection.

Justice Thomas took the opposite view in his dissent, writing that the First Amendment interest in anonymous speech trumped the state's purported concerns about electoral integrity.  In Justice Thomas' view, the proper standard was strict scrutiny, and, under that standard, the PRA could not constitutionally force the disclosure of petition information because "there will always be a less restrictive means by which Washington can vindicate its stated interest in preserving the integrity of its referendum process."

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A panel of the Court of Appeals for the Fifth Appellate District in Ohio has affirmed a lower court’s grant of summary judgment in favor of an Ohio radio station in a defamation and false light invasion of privacy case involving a former candidate for judicial election. The Fifth District’s opinion in Christiansen v. WCLT et al. is linked here. 

Shortly before the November 2008 general election, radio station WCLT (Newark, Ohio) aired and posted to its website a political editorial in which the station’s general manager expressed his opinion that two of three candidates were inappropriate for the position of Domestic Relations Court Judge. One of the two candidates quickly sought an ex parte temporary restraining order to enjoin the editorial from further distribution (which was later denied) and filed a defamation complaint. Later, because certain of the statements the plaintiff contended were defamatory were by her own admission literally true, the plaintiff amended her complaint to also allege a claim for false light invasion of privacy. 

The statements in the editorial that the plaintiff challenged were these:

In July of 2007 a police report alleging assault was filed with the Newark Police Department against [the plaintiff]. In the report she is accused of striking a person in a courthouse elevator. She has also had several complaints concerning her behavior filed with the Ohio Supreme Court’s disciplinary counsel. 

The plaintiff admitted the statements were literally true, but claimed that the statements improperly created the inference that she had been charged with assault and disciplined by the Ohio Supreme Court’s disciplinary counsel – neither of which had happened. (The Fifth District’s opinion includes the full text of the editorial.)

On cross motions for summary judgment, the trial court denied the plaintiff’s motion and granted the radio station’s motion for summary judgment, finding that (1) the allegedly defamatory statements were not made with actual malice because the defendant believed them to be true (indeed, the plaintiff admitted they were literally true), (2) the statements were protected opinion, and (3) the statements could be construed as non-defamatory.

On appeal, the Fifth District, in a 2-1 decision, denied each of the plaintiff’s five assignments of error by the trial court. The court held that:

• The lower court had not committed error by finding the allegedly defamatory statements to be literally true. 
• The lower court properly applied the “innocent construction” rule to the statements. This rule requires that when an allegedly defamatory statement is subject to two interpretations, one defamatory and one not, the court must apply the non-defamatory meaning. 
• The trial court did not err by finding that the factual statements made in the editorial were true and the rest of the editorial was protected opinion. 
• The trial court properly held that the statements were not made with actual malice – knowledge of falsity or reckless disregard for the truth – because the statements were literally true. Actual malice could not be inferred from the plaintiff’s evidence of common-law malice or personal animosity.
• The trial court properly distinguished the plaintiff’s defamation claim from her false light claim, as both causes of action require the plaintiff to prove actual malice. Since the court affirmed the finding that the statements were literally true, the plaintiff could not prove actual malice.

The appellate decision represents an important victory affirming the right of news organizations and others to engage in political speech during election campaigns.

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In a decision with important implications for bloggers and other so-called "new media" journalists seeking to invoke the protections of their state's reporter's privilege, a New Jersey appeals court recently held that New Jersey's shield statute did not protect a woman who operated a web site dedicated to revealing "criminal activity" within the pornography industry.

The appellate court's decision in Too Much Media, LLC v. Shellee Hale affirmed a trial court decision requiring Hale to reveal her sources for a series of web postings that the plaintiffs asserted were, among other things, defamatory.  Hale had sought a protective order, citing New Jersey's shield statute.

In a lengthy analysis, the court focused almost entirely on whether Hale could be considered a journalist under the statute.  The statute covers, in relevant part, any

person engaged on, engaged in, connected with, or employed by news media for the purpose of gathering, procuring, transmitting, compiling, editing or disseminating news for the general public.

"News media" is defined as "newspapers, magazines, press associations, news agencies, wire services, radio, television or other similar printed, photographic, mechanical or electronic means of disseminating news to the general public."

As an initial matter, the court held that under the statute, Hale bore the burden of proving she was a journalist.  In making this holding, the court cited to a portion of the New Jersey shield statute relating to efforts by criminal defendants to obtain a reporter's sources.  The court decided, without analysis, that the same burden of proof should apply in civil cases.  It is open to question, however, whether the public interest that exists in the civil context is weighty enough to require someone to prove he or she is a "journalist."

With that burden established, the court held that Hale had failed to prove that she was "engaged on, engaged in, connected with, or employed by news media for the purpose of gathering, procuring, transmitting, compiling, editing or disseminating news for the general public."  The court said:

Defendant has produced no credentials or proof of affiliation with any recognized news agency, nor has she demonstrated adherence to any standard of professional responsibility regulating institutional journalism, such as editing, fact-checking or disclosure of conflicts of interest.

The standard of proof outlined by the court is troubling.  After all, nothing in the text of the statute appears to require that someone adhere "to any standard of professional responsibility," and yet the New Jersey court made it a de facto requirement for being a "journalist" under the shield statute.

According to media reports, Hale will ask the New Jersey Supreme Court to review the decision.

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The answer, of course, is a resounding no (and no, snarky readers, not because of the libel-proof plaintiff doctrine).

The surprising thing about that question, is not the answer, but rather that nearly 50 years after the United States Supreme Court's landmark defamation decision N.Y. Times Co. v. Sullivan the question still has to be asked in the context of a current lawsuit.

The lawsuit giving rise to the headline was brought by Steve Theriot, interim president of Jefferson Parish, Louisiana and by the Parish itself.  In it, the plaintiffs claim that John Does 1 through 100 -- all anonymous online commenters on the website www. nola.com -- defamed both Theriot and the parish government as a whole with comments they posted online allegedly implying that Theriot and other government officials are "unethical or deceitful."  The suit seeks money damages from the unnamed defendants.

After filing the suit, which is being paid for by the parish, Theriot backtracked and claimed only to be seeking the identity of the commenters so he could get more information from them about the charges of corruption and parish mismanagement they made online.  That stance is hard to reconcile with the lawsuit accusing those commenters of defamation.

We have written often about the ever-growing body of law regarding efforts to force web sites to disclose the identities of anonymous commenters, though anyone who has ever taken a bar review class knows that Louisiana rarely adopts the majority rule in any area of law.

Setting aside that question for now, this suit faces at least one other crippling defect, as least as it pertains to the plaintiff Jefferson Parish.  The Supreme Court in New York Times v. Sullivan could not have been more clear that the Constitution simply does not allow government bodies to bring defamation claims on its own behalf.  The Court held:

For good reason, "no court of last resort in this country has ever held, or even suggested, that prosecutions for libel on government have any place in the American system of jurisprudence." City of Chicago v. Tribune Co., 307 Ill. 595, 601, 139 N.E. Page 376 U. S. 292 86, 88 (1923).  The present proposition would sidestep this obstacle by transmuting criticism of government, however impersonal it may seem on its face, into personal criticism, and hence potential libel, of the officials of whom the government is composed. There is no legal alchemy by which a State may thus create the cause of action that would otherwise be denied for a publication which, as respondent himself said of the advertisement, "reflects not only on me but on the other Commissioners and the community." Raising as it does the possibility that a good faith critic of government will be penalized for his criticism, the proposition relied on by the Alabama courts strikes at the very center of the constitutionally protected area of free expression.  We hold that such a proposition may not constitutionally be utilized to establish that an otherwise impersonal attack on governmental operations was a libel of an official responsible for those operations.

This rule reflects the absolutely core function of the First Amendment -- to give the public the "breathing space" to criticize its government without fear of reprisal for even the slightest inaccuracy.

Of course, this does not even address the other problems with such a claim.  For starters, how exactly would a municipality prove actual damages?

Given the well-settled nature of the case law in this area, and the fact that Theriot is now quickly stepping back from his own lawsuit, it seems apparent that someone told him that going forward with a meritless claim on behalf of the parish was more likely to result in sanctions than in a legal victory.

UPDATE:  According to news reports, Theriot and the parish have now dropped their lawsuit.

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The U.S. District Court for District of Hawaii issued an order on May 7, 2010, denying a federal candidate’s request to be included in a televised debate among the candidates for a seat in the U.S. House of Representatives. The order is available here.

Fourteen candidates are in the race to fill a vacant seat in the House. Television station KITV, Honolulu, Hawaii, in partnership with the League of Women Voters, chose three candidates to participate in the televised debate on May 7. One of the candidates who was not selected to participate filed a lawsuit against the station and sought a temporary restraining order (TRO) from the court to stop the debate from happening. The candidate generally argued in his TRO motion that the station had deprived him of his right to freedom of speech under the First and Fourteenth Amendments.

Candidate debates on TV or radio are generally governed by the Communications Act of 1934, as amended, and FCC regulations that implement that statute. The district court denied the Hawaii candidate’s request to stop the debate, first, because the governing statute, Section 315 of the Communications Act, does not recognize a private right of action to bring a lawsuit against a broadcaster related to a debate. The law instead requires a candidate to file a complaint with the FCC, which has jurisdiction over broadcast debates. 

The court also denied the request because it found there was no “state action” in the case – that is, no deprivation of a constitutional right by a government body or actor – because KITV is a privately owned company.  

The court compared the case to Arkansas Educational Television Commission v. Forbes, 523 U.S. 666 (1998), in which the Supreme Court ruled that a televised candidate debate was a “nonpublic forum” from which a broadcaster was entitled to exclude a candidate on a reasonable, viewpoint neutral basis in the exercise of its journalistic discretion. (The Hawaii case is otherwise distinguishable because, in the AETC case, the television station was government-owned.) 

The court found that the Hawaii TV station selected participants in the debate on a candidate-by-candidate basis and based its decision in part on each candidate’s degree of public support. The station did not take the candidates’ viewpoints into account in making its selections. According to the court, “the current record supports the finding that Plaintiff was excluded not because of his viewpoint, but because he had not generated appreciable public interest.” With that finding, the court held the candidate was not likely to succeed on the merits of the case, so the issuance of a TRO to stop the debate was not justified.

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A bill that would generally allow electronic media coverage of U.S. Supreme Court proceedings passed the Senate Judiciary Committee on April 29. 

The bill, S. 446, provides:

The Supreme Court shall permit television coverage of all open sessions of the Court unless the Court decides, by a vote of the majority of justices, that allowing such coverage in a particular case would constitute a violation of the due process rights of 1 or more of the parties before the Court.

The text of the brief bill is linked on GPO’s website here.

The bill as currently drafted would presumptively allow electronic media coverage of Supreme Court proceedings unless five justices decide that permitting the coverage would violate one or the other party’s Fifth Amendment due process rights. The Supreme Court has never allowed electronic media coverage of its proceedings, so enactment of the bill (if it happens) would be a major step forward for cameras-in-the-courtroom advocates. 

Although many state courts do allow cameras in the courtroom, the federal judiciary has been more reluctant to do so. Under current federal law, cameras are generally prohibited in federal district court proceedings. In fact, some federal district courts, by local rule, forbid the public and courtroom participants (lawyers and parties) from bringing smart phones with camera capabilities inside the federal courthouse. And, although the U.S. Courts of Appeals are allowed to permit electronic media coverage of their proceedings, they generally do not. For an excellent summary of the history of cameras in federal courts as of 2006, see the CRS Report to Congress on this topic.

S. 446 was introduced by Sen. Arlen Specter and has seven additional co-sponsors. With Thursday’s vote, the bill was reported favorably out of the Senate Judiciary Committee and now moves to the full Senate floor.

Companion legislation, H.R. 429, was introduced in the House in January 2009 and was referred to the House Judiciary Committee, where it is still pending. 

In related action on April 29, the Senate Judiciary Committee took the somewhat unusual step of adopting a Senate Resolution, S. Res. 339, voicing support for the cameras in the Supreme Court bill. The resolution states:

It is the sense of the Senate that the Supreme Court should permit live television coverage of all open sessions of the Court unless the Court decides, by a vote of the majority of justices, that allowing such coverage in a particular case would constitute a violation of the due process rights of 1 or more of the parties before the Court.

We'll continue to follow Congressional action on cameras in the U.S. Supreme Court and report on important developments.

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